Theme: Illegal Employment

Can my child quit school if he is working with my family in a family enterprise?

No, the law specifically states the importance of a child’s education and so you should not force your child to quit school. Instead, you should encourage him or her to learn and work at the same time. You should keep in mind:

  • Your child can only work in a family enterprise to help his or her own family and only work for the family.
  • Your child should not be given work during school hours and between 7 pm and 8 am.
  • Your child should not be engaged in tasks which may severely affect his education or homework or extra-curricular activity assigned to him or her.
  • Your child should not be engaged in continuous tasks without rest which would make him or her tired. It is important to provide care and support for the child by providing breaks to refresh his health and mind. That is why the law states that the child should not work continuously for more than 3 hours.

Can parents be punished for allowing their children to work?

The parents or guardians of the children who are working in violation of this law will generally not be punished for allowing their children to work.

However, this immunity does not apply if they make their child (who is under 14 years of age) work for commercial purposes or make their child (between 14 years and 18 years) work in a hazardous occupation or process.

The law does give them a chance to correct their wrong – when they are caught doing this the first time, they can settle it by paying money. However, if they make their child work again in violation of the law, they can be punished with a fine of up to Rs. 10,000.

What other work can a child do other than movies and sports under the child labour law?

Apart from sports and movies a child can work in other jobs such as:

  • Cinema and documentary shows on television, like reality shows, quiz shows, talent shows. A child can also participate in a radio activity.
  • Drama serials.
  • Anchor of a show or event.
  • Other artistic performances which the Central Government will permit in individual cases but these do not include street performances for monetary gains.

Can the government exercise any investigative powers under this law to find out who employs and maintains insanitary latrines, under the law on manual scavenging?

The government can appoint ‘Inspectors’ who have the powers to:

  • Test latrines.
  • Search premises where manual scavenging might be taking place.
  • Examine people found at such places.
  • Ask questions and get information about contractors or people employed as manual scavengers.
  • Seize documents such as copies of registers, records of wages or notices.

Not showing documents or giving information to the inspector when asked can be considered a crime under the general criminal law. The law on criminal procedure in relation to search or seizure under a warrant would apply to searches and seizures conducted by such inspectors.

What happens to manual scavengers who have signed an agreement of employment?

If anyone had signed an agreement with manual scavengers to employ them to clean up certain insanitary latrines, this agreement would be considered as having no legal effect. This does not mean that people who had been employed under the agreement will be jobless – the employer has a duty to employ them in another job and pay the same salary at a minimum.

Who is a Manual Scavenger?

Any person who has been employed to handle undecomposed human waste from an insanitary latrine, open drain or pit or railway track is a manual scavenger. The person could have been employed by anyone – say someone from their village or by an agency or contractor. It does not matter if they were given regular employment or engaged on contract basis.

Any person who has been employed to clean human waste and does so with the help of the appropriate protective gear and equipment will not be considered a manual scavenger.

Safai-Karamcharis

Another group of people called ‘safai karamcharis’ (“cleanliness workers”) are also sometimes considered as manual scavengers – however, they usually refer to people working as sweepers or cleaning workers in the municipalities, government or private organisations.

Employing adolescents between 14-18 years

Adolescents are allowed to work in places that do non-hazardous work. These establishments that do non-hazardous work are notified by the government. They are also allowed to work:

  1. In a family business. For example, working in your family jewellery business.
  2. As a child artist. For example, acting in Bollywood movies or in an advertisement.

Adolescents between the age of 14 to 18 are not allowed to work in:

  • Mines or places which use inflammable substances or explosives. For example, a factory which manufactures firecrackers.
  • Industries which use hazardous processes which are provided in another law called the Factories Act, 1948. They include coal, power generation, paper, fertilizer, iron and steel industries, asbestos, etc.

Is building an Insanitary Latrine unlawful?

It is unlawful and an offence under the Manual Scavengers and Their Rehabilitation Act, 2013 for any person, municipality, panchayat or agency to build an insanitary latrine that requires human waste to be removed manually by a person before the waste has properly decomposed.

Local authorities must carry out a survey of insanitary latrines in their area and publish a list of all the identified latrines. The local authorities are responsible for the building and maintenance of these community sanitary latrines and must make sure that they are functional and hygienic.

The punishment for first-time offenders constructing or engaging or employing someone to construct an insanitary latrine is jail time up to one year as well as a fine for up to Rs. 50,000. Second-time offenders can face jail time up to two years and a fine of up to Rs. 1,00,000.

Employing children under 14

It is illegal to employ or allow children under the age of 14 in any form of occupation. Employers, parents or any guardian in charge of a child who allows a child to work in any type of occupation will be punished.

However, there are two exceptions. The Government allows children to work:

If you know of any acts of child labour where the child is below the age of 14, please report the crime.

Who is responsible for Demolishing or Converting an Insanitary latrine?

The person who occupies the property on which an ‘insanitary latrine’ exists has to demolish or convert it. If more than one person owns the property on which the insanitary latrine is built, the costs have to be paid by the owner (if they are one of the occupiers) or equally by all of them.

While the State Government could choose to help occupiers with the conversion process, the occupier cannot use the government’s inaction as an excuse to maintain an insanitary latrine beyond 9 months. In case the occupier does not destroy or convert an insanitary latrine within 9 months, the local authority has to take over after giving a notice of 21 days. The authority can then recover the costs from the occupier.

The punishment for first-time offenders is jail time up to one year as well as a fine for up to Rs.50,000. Second-time offenders can face jail time up to two years and a fine of up to Rs.1,00,000.

Determining age of Child

If you as an employer are unsure if the child is below 14 years or above 14 years of age, then the age of the child will be determined by a medical authority who will look into the following three documents while determining the age:

  • Aadhar card of the child or adolescent.
  • Birth certificate from school, or the matriculation or a certificate from an examination Board.
  • Birth certificate of the child or adolescent given by a corporation or a municipal authority or a panchayat.

When these three documents are absent, then the medical authority will do an ossification test or any other latest age determination test to find out the age of the child.

As an employer, you should have a certificate of age for the child, in case the inspector wants to determine the age of the child. If the inspector finds out that you have not obtained a certificate of age for the child, he will specifically instruct you to obtain it from a medical authority.

Is it legal to employ a Manual Scavenger?

No, it is illegal to employ someone as a manual scavenger in India. It is also unlawful for anyone (including municipalities and panchayats) to employ any person for the cleaning of a sewer or a septic tank without the necessary protective gear.

People who do so face the following repercussions.

Employing someone as a manual scavenger

The punishment for employing a manual scavenger, for a first-time offence is jail time up to one year as well as a fine up to Rs.50,000. If someone commits the offence again, then the punishment is jail time up to two years and a fine up to Rs.1,00,000.

Employing a person for hazardous cleaning of a sewer or a septic tank

The punishment for employing a person for hazardous cleaning of a sewer or septic tank for a first-time offence is jail time up to 2 years and a fine up to Rs. 2,00,000. If someone commits the offence again, then the punishment is jail time is up to 5 years and fine up to Rs. 5,00,000.

A company employing someone as a manual scavenger

When a company commits the offence of manual scavenging, not only will it be considered guilty of the crime, but so will any employees of that company who allowed the offence to take place. This can include directors, managers, secretaries, and other officers of the company.

For more information, visit the website of National Commission for Safai Karamcharis.

Employers Responsibility towards Child Artists

When child artists are being employed for work, there is an obligation on the employer to fill out Form C as given in the Child Labour (Prohibition and Regulation) Act, 1986. The employer by filling the Form C, has to promise to take responsibility in the following manner:

  • Child’s education should not be affected.
  • Child artists who are hired should be protected, given care and protection and full care of their physical and mental health should be looked into.
  • The employer should not violate the legal provisions of the child labour law.
  • The employer should take care of the child’s well being so that no sexual offences are committed.

Application for Permission

The District Magistrate (in the district where the activity is taking places) should give you an undertaking allowing the child to work. The parents or the guardian should also give approval for the work being done by the child. The undertaking will state and ensure:

  • Facilities for the physical and mental health of the child.
  • A nutritional diet of the child.
  • Clean and safe shelter for the child.
  • Compliance with all laws for the protection of children, right to education and protection against sexual offences.

Working Hours

The employer has to take note of the following points:

  • A child cannot be allowed to work for more than five hours in a day.
  • A child cannot be made to work for more than three hours without rest.
  • A child should not be made to work consecutively for more than 27 days.

How can Manual Scavengers be rehabilitated?

Both in urban and rural areas, if the officers of the Municipality or the Panchayat believe that manual scavenging may be taking place in their area of control, they have to do a survey and create a list of manual scavengers. The Municipality and the Panchayat have a duty to rehabilitate the people included in this list. The District Magistrate is responsible for rehabilitating manual scavengers in that district in accordance with this law. The District Magistrate or the State Government may assign responsibilities to subordinate officers and officers in the Municipality. The process for rehabilitation is as follows:

  • Immediate help – Give them a photo ID and some cash within 1 month.
  • Children’s education – Their children can get a government scholarship.
  • Property – The government must put in place schemes under which the person is allotted land and money to build a house or money for a built house.
  • Training for other jobs – The government has to help train either the person or another adult member of their family in other skills. The person should also be paid Rs. 3000 during the time they are undergoing training.
  • Loan – The government must put in place schemes under which the person (or another adult family member) has the option of getting a subsidy or loan with lower interest rates to help them get into another field or occupation.
  • Other Help – The government can choose to give them any other kind of legal or other help.
  • Government Schemes – The Central Government has put in place a scheme called the ‘Self Employment Scheme for Rehabilitation’ of Manual Scavengers. Read more about the scheme here. There are numerous loan schemes put in place by the National Safai Karamcharis Finance & Development Corporation which are offered through state channelling agencies. Read more about how to avail such schemes here.

Role of Schools in preventing Child Labour

The school has a role in preventing child labour.

The right to education of a child applies even if the child or adolescent is working as an artist or in the family business.

When the child is working in the family business and if the child hasn’t been coming to school for a consecutive period of 30 days, the Principal or Headmaster of the school, has to report the absence of any child, to the Inspector.

Further, if the members of the school are aware that the child or adolescent is engaged in any illegal work then they are required to report it.

How to file a complaint for Safai Karamcharis?

If you notice or are made aware of instances where laws for safai karamcharis are not followed, you can file a complaint to the National Commission for Safai Karamcharis (NCSK). You can visit their website complaint section here.

This Commission will inquire into the complaints and report them to the officers of the Municipalities and the Panchayats with recommendations of further actions.

Duties of an Inspector to prevent Child Labour

The Government appoints Inspectors to make sure that there is no illegal employment and the permitted employment of adolescents is done as per the law. An inspector or police officer has a duty to:

  • Conduct periodical inspections of the places where employment of children is prohibited.
  • Carry out rounds of inspection at industries where children are employed and where adolescents are employed.
  • To check the working conditions of children in family enterprises.
  • Accept complaints and report illegal acts of child labour to the Court.
  • Determine age of a child, if there is a doubt that the child is below the age of 14 years.
  • Inspect the Register maintained by the employer at the establishment which would have details such as:
    • Name and date of birth of the child employed along with relevant documents as to the date of birth.
    • Hours and periods of work(including the hours of rest).
    • Nature of the work that the child is doing.

All the inspectors have to make sure that if a child is being employed illegally, then the concerned employer has to pay Rs. 20000 as a fine into a fund known as the Child Labour Rehabilitation-cum-Welfare Fund, which the child can reclaim later.

Responsibilities while employing Child Artists

The following are the responsibilities of the employer when it comes to employing child artists:

Education

You should make sure that the child is given proper education while doing his or her work as an artist. The Act specifically states that all measures must be taken so that the child does not discontinue going to school.

Income

You should make sure that 20% of the income that has been earned by the child as an artist, should be deposited in a fixed account in a nationalized bank and once the child becomes 18 years of age, he or she can reclaim the money.

Consent

The most important criteria is that if a child is uncomfortable and does not want to participate in an activity or sport, the child should not be forced into the action against his or her will and consent.